Regulator considers lowering standard of proof in disciplinary cases

The Bar Standards Board (BSB) has proposed adopting the civil standard of proof in disciplinary proceedings against barristers charged with professional misconduct.

The current standard of proof used is the criminal standard which is ‘beyond a reasonable doubt’ or ‘satisfied so as to be sure’. But the BSB is seeking views on whether its regulatory arrangements should be changed to allow the civil standard of proof, ‘on the balance of probabilities’ or ‘more likely than not’ to be applied.

The change would bring it in line with other professional regulators, including the Solicitors Regulation Authority and the General Medical Council.

Commenting on the proposal, Chair of the Criminal Bar Association, Francis FitzGibbon QC said: ‘The issue is not an academic one. Anyone who has been involved with Bar disciplinary proceedings knows that the process is agonising and the stakes are high.’

He said: ‘We risk our professional integrity at our peril, and we should not expect the public to respect us if we appear soft on serious misconduct.’

The criminal standard, he said, puts misconduct on a par with actual crime, and marks how seriously it is taken. But, he said: ‘It’s reasonable to ask why so high a standard is needed and why the balance of probabilities does not suffice.’

The consultation, Review of the Standard of Proof Applied in Professional Misconduct Proceedings, closes on 21 July.